The case centres around advertisements for broadband, and in particular the 150 GB plan, which is really 75 GB + 75 GB (the plan I use, actually). His Honour said:

Viewed in isolation at the moment of its delivery this advertisement plainly misleads consumers into thinking that they will receive 150GB of broadband when they are getting no such thing unless they assiduously ensure that they exhaust all of their off-peak usage allowance before exhausting their peak usage allowance.

I understood this before signing up, and I’m pretty happy with the plan, but it is true – you do have to use your morning allowance completely before using up all your afternoon/evening allowance.

The Court eventually held that Optus should adequately disclose that speed limiting will be applied once peak usage is reached. In other words – speed limited unlimited data is not “unlimited”!

1. The respondent [Optus], for a period of three years from the date of these orders, whether by itself, its servants or agents or otherwise howsoever, be restrained from advertising broadband internet plans under which:

1.1 for a specified monthly sum, the customer is supplied with a monthly data allowance which is divided between peak and off-peak periods; and

1.2 if the customer exceeds the monthly data allowance for the peak period the speed of the internet service will be limited for both the peak and off-peak periods for the remainder of that month without clearly and prominently disclosing in the advertisements for those plans the facts set out in paragraph 1.2 above.

There are a lot of scams on the internet. A particularly popular one is the Chinese domain name scam. A person will write to you from China, apparently from a domain name registrar, letting you know that someone in China wants to register a domain name that uses your trademark. The email will be very similar to the one below.

It's a scam. Don't fall for it, because no-one is applying for the names, and you probably don't do business in China anyway. Some of the email simply doesn't make any sense at all, such as "Network Brand". You will also see variants referring to "internet keyword". They're just silly.

Some people enjoy emailing them back and asking them to call - you can have a lengthy international call at their cost about the weather in China, or the food in China, or anything else you might like to talk about...

From: John [mailto:mrjohn@lh-group.org] Sent: Friday, 3 December 2010 8:01 PM Subject: URGENT!! Asia Domains Registration Announcement Importance: High Mrjohn@lh-group.org (Please forward this email to your CEO or the responsible man for your IP. Thanks) Dear CEO, As one of the leading internet solutions organizations in China, we have something to confirm with you. We formally received an application on Today, a company named "Asia Investment Co.,Ltd." it intends to register '' yourdomainname'' as Network Brand and the following domain names: yourdomainname.com.cn yourdomainname.com.hk yourdomainname.com.tw yourdomainname.in yourdomainname.net.cn yourdomainname.org.cn yourdomainname.tw But after checking it, we find this name conflict with your company. so we need to check with you whether your company has authorized that company to register these names or not. If you have authorized this, we will finish the registration at once. If you haven't authorize, please let us know within 7 workdays, so that we will handle this issue better. Exceeding the limited time, we will unconditionally finish the registration for "Asia Investment Co.,Ltd.". Looking forward to your reply. Best Regards, John LH Group Email:john@lh-group.org Tel:+86-23-68927971 Fax:+86-23-68923769 Web: Address:Room 4-19,NO.6, Xinsheng Village One, Yangjiaping,Jiulongpo District, Chongqing, China(the original Rongzhou Garden Block A)2010-12-3 Please consider the environment before you print this e-mailwww.lh-group.org

14 November 2010

Classified adverts

The theory isn’t new, and the tactic is really just a development, not evolution, but the government is interested in your online boasting. Ars Technica (http://arstechnica.com) recently published a document said to be from the USA Department of Homeland Security. Social networking “provides an excellent vantage point for FDNS to observe the daily life of beneficiaries and petitioners... Once a user posts online, they create a public record and timeline of their activities.” It’s easy to see that these sorts of things will weed out fraudulent engagements, marriages, social security dependencies and so on. I despise people who carry on these sorts of activities, but for the rest of us: do you really need to do the modern equivalent of taking out a classified advert to tell the world at large what you did on the weekend? Do you?

Kiwis

New Zealand has the Copyright (Infringing File Sharing) Amendment Bill 2010 before parliament at the moment. It aims to solve the problem of “lack of public knowledge that file sharing may infringe copyright” by amending the Copyright Act 1994! Yep, that’ll fix it. Three notices to the account holder may be issued, noting that infringing activity will be logged by their ISP (yes, the ISP are now the police). After three notices are issued the copyright holder may apply to the Copyright Tribunal for a compensation award (up to $15,000) and the District Court may order suspension of internet access for up to six months. “Claims will generally heard on the papers” but a hearing may be requested. Lawyers are only allowed with leave, which looks unlikely to be given. There is a mechanism for challenging notices, and they expire after 9 months.

So the account holder will always suffer the penalty. I wonder how that will affect group house arrangements for uni students, or parents with teenagers? At least with camera speeding offences you can nominate the responsible driver for the penalty. ISPs can charge the copyright holders for any extra work but the regulations may prescribe those rates, which may be uncommercial.

It seems to ignore the problem of actual damage. File sharing is where material “is downloaded, made available, or transferred to another.” Infringment means an incident of file sharing. A song costs AUD$1.69 on iTunes usually. Are we going to see these proportionate awards for damages? And “made available” may mean that no damage occurred at all. Will damages be awarded for no damage?

Some parts show some thought, such as enforced delays between the notices to give the account holder time to try to stop the problem. However the challenge procedure is a problem, since it must be done within a week (bad luck if you’re travelling or busy, and your kids and housemates are at home all day on holidays...). And if you lose your internet for six months be careful you don’t have your online accounts closed for lack of use.

What makes this Bill completely unacceptable is the ability to suspend an internet account. It is, for many people, the removal of a basic utility just as important as electricity. Tough if you’re a small business operator with kids or enjoy working from home every now and then, or share a group house and study using the Internet, or even just store your documents “in the cloud”. You’re going to have think very very carefully about who is using your internet and for what purposes. Perhaps we’ll see some decent routers with built in protection, but that will definitely be at a cost. Of course, if it does make it into law then there will be the obvious temptation to bring it here.

Domain name security

A blogger, Ben Metcalfe (http://benmetcalfe.com), announced that his domain name vb.ly was cancelled by the Libyan domain registry in September 2010. This was one of his organisation’s main domains, and it was seized apparently because his content ran afoul of Libyan Islamic law. The site merely converts long URLs into much shorter ones (which is why he registered this particular domain), and according to Metcalfe was in compliance with the Registry’s rules. The domain name was made available, along with other short names, for re-registration by Libyans.Domain names can be a significant asset, and some emerging markets have produced interesting domain names, such as .fm and .am for radio stations, .it for IT professionals, .me for personal sites, .mo (a product site for the mower fly.mo?), and someone already has calv.in, yet these are all actually country top level domains.

The lesson here is that some registries may be heavily influenced by their respective governments or other bodies, and simply don’t behave in ways that you might expect - but is perfectly in accordance with local custom. If you don’t know the country and its customs well, then investing heavily in a domain there may be as risky as investing in real estate without local advice.

Stalkers

This advice false into the category of “I shouldn’t have to tell you this, but...” Facebook recently introduced “Places” (http://www.facebook.com/places/) and I promply forbade my daughter from using it (it turned out I didn’t have to - she worked it out for herself). If you have a mobile phone such as an iPhone that has a GPS in it, you can just click a button to share on your Facebook feed exactly where you are at that moment. Conversely “When you use Places, you'll be able to see if any of your friends are currently checked in nearby and connect with them easily.” But you know what? If your friends are out and about without you then there might be a reason why you weren’t invited...

There are many other services like this, such as foursquare and GoWalla (Google introduced Latitude some time ago to deafening silence). While there are some fun or even useful possible scenarios for this (“I’m in a castle in Bacharach, Germany”, “Now I’m in a spa in Finland”), the opportunity for it to work out to your detriment is immense. It would be fun to brag on holidays but for a teenager who’s “friended” 500 people she’s never met, as well as a few enemies and stalkers, it’s a recipie for bullying and harrassment. Another problem with these products is that they are not always accurate - my phone sometimes shows me in the Sheraton across the street from my office. When I’m in the MLC centre, am I at a law firm, having lunch, shopping at Harvey Norman, or at my dentist? When I’m having a drink with a mate, why does it look like I’m at our competitor which is next door to the bar?

Careless friends

Friends can be unintentionally careless with information; “... when you share your information with a network, you’re trusting everyone on that network to protect your privacy ... there’s always the potential when using location-based social media that someone you don’t want to see could find your exact location.” (http://goo.gl/9boD). Unless your friends list is limited to a truly trusted set of people (assuming they care where you are anyway) then there is no reason to share anything at all. Being burgled while on holidays just isn’t fun.

If you really want to brag in style, set up a blog, snap a photo of that chateau and mail it to your blog with a few carefully chosen words. For more information read the EFF’s take on it (http://www.eff.org/wp/locational-privacy).

06 October 2010

This is a photo out of the 288 in Sydney. Sydney Buses places advertising on the glass, which impairs viewability. I noticed this particularly tonight while trying to photograph the Sydney Opera House while crossing the Sydney Harbour Bridge.

Vision impaired people have a tough time, and I understand that such window films make it worse. I'm led to believe that the State government's response is that only several windows are covered- not the whole bus.

Only a non-bus-user would find this answer acceptable. We rarely get to choose where we sit; usually we take what we get. There may be reasons why a vision impaired person can't sit on the sunny side of a bus.

These style of advertisements should be phased out. It's just one more indignity for the disabled traveller.

17 September 2010

The contenders

I’ve been using a Blackberry Pearl 8100 for over two years, and for the last year I’ve simultaneously used an iPhone 3GS. Which do I prefer (considering the 8100 is old and doesn’t have 3G)? The iPhone, but it comes at a cost in an enterprise environment.

Email: I use them both with a personal Gmail account and my corporate Exchange account. I’m advised that the email on iPhone is not as secure as Blackberry, so we are looking at extra software to achieve this for our iPhones. It will also let use segregate personal and corporate data, which allows us to remote wipe corporate data without touching anything else. The BlackBerry email interface is faster and has access to all the Exchange functions I need, including setting up out-of-office. On the iPhone you need to log into Outlook Web Access (assuming you offer this service) in Safari, which is a hassle. The iPhone can often struggle with (read “not display”) Rich Text emails sent from Microsoft Outlook, which can be a huge problem. You should ask your correspondents to set the default format for Outlook to HTML. It also frequently shows an attachment named “winmail.dat” rather than the actual attachment.

Meetings: Dealing with meeting invitations is much slicker on the BlackBerry. In fact, any inbound message whether email, SMS or meeting invitation is all in the one inbox. On the 3GS that requires three applications.

Documents: Our document management system provider (Objective) has apps for both devices, but document reading is much easier on the iPhone. Only a few BlackBerrys have large screens.

Phone: The BlackBerry’s phone is excellent – great call quality, voice recognition, volume and battery life. A new battery will give 5-7 days between charges (using a mini-USB charger). The iPhone must be charged every day using the Apple cable. The iPhone phone volume is a bit quiet. The Bluetooth on the BlackBerry to be easier to use than the iPhone. On the 8100 I leave it on all the time and it seamlessly connects to my various car and other devices, whereas the iPhone is a bit more fiddly.

The BlackBerry’s data connection is also more reliable – it works in many places where the iPhone says it has no reception (both are on Optus). The BB also doesn’t throw lots of on-screen error messages when it loses connectivity.

Looking up addresses in the corporate address book (i.e. not local) is faster and easier on the BlackBerry.

Applications

The Maps application on the iPhone is easier than the BlackBerry. Out of the 200,000 apps on the iTunes store I’d say 50% are worthless, 30% of marginal use and 0.5% are really good. BlackBerry has App World, with vastly fewer but high quality apps. However, it’s not broad enough for me. Non-factory iPhone apps I have used extensively and relied on are TomTom GPS, iXPenseIt, RememberTheMilk, RoboForm, TuneIn Radio, Evernote, TripIt, Darkroom Pro, Google Reader, Paris Metro and PennyTel. The lack of all of these would be a deal breaker for me. Both phones have games, but these aren’t important for me.

Typing on the 8100 is too quirky for some, but I think it’s great. The predictive text is very good and the half-qwerty keyboard keeps the phone small and light. The iPhone is much bigger, and a bit slower to type on. It’s a trade-off between size and functionality.

Other players

Windows Mobile has been a pretty horrible product, but there’s hope. Version 7 due later this year looks like it will finally become something really good to use. Quite a few manufacturers will build the hardware. Avoid a 6.x phone in the meantime. Android phones are also built by several vendors, and some of them now such as the Samsung Galaxy S are great devices, rivalling the iPhone in bells and whistles.

03 September 2010

If the matters raised in the linked Sydney Morning Herald article are true (SMH), I'd say that this is enough of a reason to simply not use Facebook at all. The lack of response to reporting by users, and the lack of response to NSW Police indicates that it is an organisation that should not be doing business in NSW.

"We tried reporting [the account] on Facebook," she said.

"We got all her friends to report it on Facebook. Facebook won't reply. They don't want to contact us. They don't want to know about it, basically. You cannot ring Facebook."

After trying and failing to shut down the profile, the mother contacted police.

She says they told her they could shut down the account, but two hours later informed her that would not be possible.

"They said Facebook won't co-operate with the police," she said.

NSW Police declined to comment on a continuing investigation, other than to say that they had "commenced inquiries".

This website (SMH) revealed last week that Facebook management failed to reveal the activity of an international child pornography syndicate operating on the site and ignored admissions by one of the ring's Australian members.

25 August 2010

Dumb

I’ve said it many times: using your ISP email address (bbloggs@bigpond.net.au) is not a great idea, as your email address will change every time you change ISP. The free alternative is an account such as Gmail, ZoHo or Hotmail, and I always recommend Gmail. Why? I logged into Hotmail today to check out the ‘new’ interface that has just been rolled out. A quarter of the screen was an advertisement for solving a ‘man’s problem’ together with a picture. Why would I recommend such a product to my mother, client or daughter?Gmail has much better spam filtering, and the advertisements are far, far less obtrusive. Even better, you can set up a Standard Google Apps Account and get your own domain name, 50 email accounts and all for $10 per year! In 10 minutes you could be theboss@mylawfirm.com.

Linux

My annual review of linux (mostly ubuntu) has come up, and this time it’s Jolicloud 1.0 (http://www.jolicould.com). It’s an Ubuntu derivative which I’ve been following since early alpha releases. It’s aimed at non-tech users with a low power computer. I put it on my Dell Mini 1020 (with an Atom processor and 2 GB of RAM). It’s probably 10% faster than Windows Ultimate (which it dual boots into). I haven’t found a compelling reason to use it yet, but it works fine and is free. It took me over an hour to work out how to install the excellent media player XBMC (www.xbmc.org), which on my charge out rate means it cost more than the PC. On the other hand, it took about 2 minutes to install the supported version of Hulu (based on XBMC). Could I live with it? Almost - it does everything I need a netbook to do (including Skype), is a little snappier than Windows, but does lack a few things. I use Evernote (http://www.evernote.com) extensively, and on Windows it caches all my data locally so I can use it while offline - it doesn’t do that on linux.

Backup

You may have heard that Liverpool City Council chambers burned down on 14 August 2010. It is reported that it lost its strategic plans, engineering documents and development applications. The Deputy-Mayor was quoted as saying that not everything was backed up, and as of 17 August the web site was still down. Of course a lot of paper was lost as well, perhaps including your client’s submissions to council. In hindsight, as the solicitor for a local resident, how would you protect your client’s position? Whenever I send out originals that are important to me I always scan the final set to PDF. It’s usually quick and easy on our A3 double-sided scanners with document feeders. It’s harder with large plans, but I will often already have an electronic copy of those.Do you still keep a mail book? When I was a boy this was an exercise book, and all couriers and post were entered into it every day. This has saved the day several times over my career, and is a good office protocol. Now you can prove when those documents were posted to LCC. In a similar vein, you might keep an execution register. This normally records usage of company seals, but you might also use one where you hold a power of attorney.Finally, this points out why you shouldn’t maintain your servers on your premises. Off-site hosting can take many forms, can be cheaper than doing it yourself, is more secure, and is far less likely to suffer a fire or water incident than your office. Give it some thought.

17 August 2010

This article's a bit late, but the European Court of Justice dealt with several claims against Google in March 2010. It remitted three claims back to the French Supreme Court to be dealt with in accordance with its ruling that it was permissable, for example, Honda to buy adwords such as BMW so that mentions of BMW could show Honda advertisements.

For further reading you might like to read the Cour de cassation in judgement # 861 (08-13.944) handed down on 13 July 2010, where it held that GIFAM's claim against Google failed. As a result, Google has subsequently announced that it will change its adwords policy to be more closely aligned with that in the USA.

17 July 2010

XBMC on Apple TV v Western Digital WD TV Live Plus

I’ve been a very happy user of XBMC for many years on three platforms: Original XBOX, Apple TV and Windows. When I bought the Apple TV I was moderately happy being able to watch my podcasts on TV, but it wasn’t until I installed XBMC on it that the Apple TV came to life. You should note that I use the standard Apple Remote on the Apple TV.

I needed another media box recently, and because the Apple TV might be up for a revamp in a few months I decided against that or a Mac Mini. A good media centre PC would cost the same as a Mac Mini, so I looked at dedicated boxes.

Word on the internet was that the Western Digital WD TV Live Plus (launched in June 2010 in the USA) was the one to get, so I did.

How does the Live Plus compare against XBMC on the Apple TV? Ignoring the features they don’t share, the video interface on XBMC is much, much better.

On XBMC you can sort your video folders by most recently modified, which pushes all your new TV recordings to the top of the list. That alone is a complete win for the XBMC. You can also delete, rename and move files and folders on the XBMC, although I really only just use the delete feature as soon as I’ve watched something.

Fast forward, skipping and volume control on XBMC is fantastic. On the WD TV you can only fast forward, and it’s not anywhere near as convenient or useful as on XBMC. No volume control on WD TV means you need to run two remotes, or use an all-in-one.

Use case 1; you record TV for time shifting – you record it, watch it at your leisure and then delete it. Clear winner is XBMC.

Use case 2: you want the extra features of the WD TV and don’t fit into Use Case 1? Get the WD TV. MediaFly support is sensational – you can do a lot of watching just in MediaFly alone.

Use case 3: you want to rip DVDs to ISO and watch them. Get the WD TV, but only because it’s cheaper and that bit functions out of the box.

The updates to iTunes issued on 22 June 2010 came with some updated terms,,,

Take a good look… 101 pages! And then you say you’ve read and agree to them! Weasel words would say that you have the chance to read them – even email them to yourself – but that really is rubbish. This is almost(?) a systematic abuse of Apple’s customers by doing nothing to attempt to help them to enter into any kind of meeting of minds or mutual understanding of the relationship. Rubbish.

22 June 2010

According to the Sydney Morning Herald on 22 June 2010 the Australia Privacy Commission, Karen Curtis, is not nearly as worried as Senator Stephen Conroy would like to believe.

Curtis rejected Senator Conroy's claims that banking transactions were captured, while also noting that Google did not collect personal information transmitted over encrypted Wi-Fi networks.

“Australian banks use secure internet connections and my Office is not aware of any instances where banking information has been collected,” she said.

This is unsurprising, given the nature of SSL/TSL connections that banks and many other organisations use. In addition, the SMH reported that the data was collected in "0.2 second snatches", so I think it's a reasonable bet that often no data at all was collected other than "internet background noise" in many many cases.

So, once again the facts prove Stephen Conroy wrong. It will be good when he loses his ministry portfolio.

17 June 2010

Asher Moses reported in the Sydney Morning Herald on 17 June 2010 that:

The federal government is hiding controversial plans to force ISPs to store internet activity of all Australian internet users - regardless of whether they have been suspected of wrongdoing - for law-enforcement agencies to access.

Yesterday, a spokesman for Attorney-General Robert McClelland denied web browsing histories would be stored, saying the government was only seeking to identify "parties to a communication", such as senders and receivers of emails and VoIP calls.

The most laughable part about the Australian Labor Government's approach to this is this statement on behalf of the Attorny-General, Robert McClelland. He hasn't been noted for the same amount of stupidity leaving his mouth as his colleague, Communications Minister Stephen Conroy. However, this is what was reported:

McClelland's spokesman defended the lack of transparency, saying the government had consulted broadly with industry about the plan but "it would not be appropriate to disclose policy discussions which are the subject of consultations with the industry".

What kind of clownish statement is this? I think you should be having policy discussions with the people of Australia (whom you allegedly represent), rather than hiding behind this statement, which is both meaningless and lacking in substance.

15 June 2010

Cyberspace July 2010

Content delivery

Google recently announced "Google TV" (http://www.google.com/tv/), which promises to deliver internet video content to your TV. I'm a bit sceptical about it at present since recent travels to France and Hong Kong have opened my eyes to what we're missing out on today.

Everything over the internet

In Paris we had a Freebox (http://free.fr) connected to the TV instead of an aerial. It plugged into the powerpoint just like any other set-top box. Elsewhere in the apartment was a typical modem, and the TV box wirelessly received signal from it. It also provided a telephone service and a wi-fi network for the apartment. Calls to most countries were free, so you get internet, tv and telephone for €30 per month. The TV has 168 channels in the basic package, with up to 396, and Free is presently laying 100 MB fibre in Paris to further improve services.

Hong Kong has something similar, provided by PCCW (http://pccw.com) since 2003. As a subscriber, you get home internet access, 7,000 wi-fi hotspots around Hong Kong, 3G mobile data, and up to 170 channels of TV (which can be chosen singly). Because the TV is delivered over the network you can also shop, order take-away food and a number of other services optimised for delivery to the TV screen (not all web pages play nicely when rendered on a TV). You can even subscribe using an existing Sony PlayStation 3, rather than rent another box, and some video is on demand, rather than being scheduled.

Both of these services are easily "consumer accessible", but in Australia we have a mish-mash of product without simple delivery. Some ISPs provide unmetered bandwidth for certain activities; iiNet has its Freezone, BigPond doesn't charge to download from movies.bigpond.com, and Internode has several offerings including the ABC's iView, and internet radio. Optus "Zoo" tries, but doesn't satisfy. In fact, very few people would be satisfied if this these were their only "TV" connection. However, other things are on the horizon.

In May 2010 Foxtel lodged an exclusive dealing notification with the ACCC. Foxtel will supply video and associated services to iQ set top boxes via the internet, but only over Telstra's BigPond system. The data will be unmetered or very cheaply supplied, but if you don't use BigPond then you won't received the service. Users will be able to "download a wide variety of content such as movies and television programs... [and] watch the content on demand", purchasing content "on a per programme basis or on a bundled basis."

Putting aside the third line forcing issue, this is really only a very small step compared to the Freebox product. Products such as an unhacked Apple TV, TiVo or Windows Media Centre have virtually no commercial content in Australia. We also can't listen to Pandora internet radio, watch BBC iView, nor find anything watchable on Hulu or Boxee. There are many fragmented steps toward a simple IPTV delivery system (including the proposed Google TV, Telstra T-Box (http://www.telstra.com.au/latest_offers/tbox/) and iiNet's resale of FetchTV), but until content providers in Australia rethink their delivery channels we won't see anything like free.fr.

Even if there was a Freebox in Australia, could our infrastructure support it? Probably only for a few, since only ADSL2, cable, Ethernet or fibre could support this sort of content delivery. Legislation to require fibre to be laid in greenfield residential developments has been delayed again (although I think the government should prescribe performance requirements, rather than a particular type of technology). The NBN (http://nbnco.com.au) is focussed on regional areas at present, relies on local ISPs being interested in that area, and may use wireless and satellite, which often provides a poor internet experience due to latency.

08 June 2010

Stephen Conroy is wrong. Completely wrong. One of reasons for the existence of SSL (aka TLS or https)is that it encrypts the connection between the user's browser and the service provider (in this case, a bank).

Even if Google captured packets while people were doing banking, those packets were encrypted by at least 128 bit encryption.

He then, hilariously, goes on to say that the Federal Government should have access to the information. Actually, Stephen, it's mostly governments and government departments that lose confidential information.

07 June 2010

Public predecisional/deliberative draft

April 2010

Here's my very preliminary thoughts on the first half of the current draft of ACTA found at http://www.dfat.gov.au/trade/acta/index.html. There's been a lot of concern in many countries about this agreement, and some secrecy continues.

I remain a bit concerned about some parts.

Participants in the negotiating process are not identified, although their comments are included. Gutless.

ARTICLE 1.2: NATURE AND SCOPE OF OBLIGATIONS21. Members shall give effect to the provisions of this Agreement. A Party may implement in its domestic law more extensive protection and enforcement of intellectual property rights than is required by this Agreement,

We must enact laws in accordance with this agreement.

ARTICLE 2.X: GENERAL OBLIGATIONS WITH RESPECT TO ENFORCEMENT1. Procedures adopted, maintained, or applied to implement this Chapter shall be fair and equitable. They shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.

The matters referred to in the last sentence are all in favour of the rights holders.

[3. Those measures, procedures and remedies shall also be [effective, proportionate][ fair and equitable] and [deterrent]]6]

Note "deterrent". The philosophy behind deterrence is very different to "proportionate".

[2. At least with respect to works, phonograms, and performances protected by copyright or related rights, and in [cases of trademark counterfeiting], in civil judicial proceedings, [As an alternative to paragraph 1,] each Party [shall][may] establish or maintain a system that provides:(a) pre-established damages;(b) presumptions for determining the amount of damages11 sufficient to compensate the right holder for the harm caused by the infringement.12 [; or(c) additional damages]]

This is "liquidated damages." This means the rights holder does not need to prove the amount of damage - it can rely on a statutory formula. This leads to absurd results such as in the Jammie Thomas case in the USA. Currently a law firm in the USA US Copyright Group is asking bittorrent downloaders to pay $2,500 for downloading the Hurt Locker. Surely the damages should be about USD$25? That might explain why this firm's website DOES A LOT OF TYPING IN ALL CAPITALS.

[3. Where the infringer did not knowingly, or with reasonable grounds to know, engage in infringing activity, each Party may [lay down that] [establish] [may authorize its] the judicial authorities may [to] order the recovery of profits or the payment of damages, which may be pre-established.]

So you can be liable for damages for unitentional acts - this seems squarely aimed at the parent, whose children do the infringing.

ARTICLE 2.3: OTHER REMEDIES1. With respect to goods that have been found to be [pirated or counterfeited] [infringing an intellectual property right], each Party shall provide that in civil judicial proceedings, at the right holder’s request, its judicial authorities shall have the authority to order that such goods be [recalled, definitively removed from the channel of commerce, or] destroyed, except in exceptional circumstances, without compensation of any sort.

This seems fair enough at first blush, but will create great injustice where infringement is "unknowlingly committed" and comprises only part or a small part of the goods to be destroyed.

2. Each Party shall further provide that its judicial authorities shall have the authority to order that materials and implements the predominant use of which has been in the manufacture or creation of [infringing] [pirated or counterfeit] goods be, without undue delay and without compensation of any sort, destroyed or disposed of outside the channels of commerce in such a manner as to minimize the risks of further infringements.

The means of production can be destroyed - so long as the "predominant use of which has been" infringing activity. This does NOT provide for destruction of items where there has been no infringing activity. eg: personal mod chips.

ARTICLE 2.4: INFORMATION RELATED TO INFRINGEMENT[Without prejudice to other statutory provisions which, in particular, govern the protection of confidentiality of information sources or the processing of personal data,]17 Each Party shall provide that in civil judicial proceedings concerning the enforcement of [intellectual property rights][copyright or related rights and trademarks], its judicial authorities shall have the authority upon a justified request of the right holder, to order the [alleged] infringer [including an alleged infringer] to provide, [for the purpose of collecting evidence] any [relevant] information [information on the origin and distribution network of the infringing goods or services][in the form as prescribed in its applicable laws and regulations] that the infringer possesses or controls, [where appropriate,] to the right holder or to the judicial authorities. Such information may include information regarding any person or persons involved in any aspect of the infringement and regarding the means of production or distribution channel of such goods or services, including the identification of third persons involved in the production and distribution of the infringing goods or services or in their channels of distribution. [For greater clarity, this provision does not apply to the extent that it would conflict with common law or statutory privileges, such as legal professional privilege.] ]

This probably doesn't change the Australian position much - it could force ISPs to provide consumer data.

ARTICLE 2.5: PROVISIONAL MEASURES[X. Each Party shall provide that its judicial authorities shall have the authority, at the request of the applicant, to issue an interlocutory injunction intended to prevent any imminent infringement of an intellectual property right [copyright or related rights or trademark]. An interlocutory injunction may also be issued, under the same conditions, against an [infringing] intermediary whose services are being used by a third party to infringe an intellectual property right.

This allows for injunctions against ISPs if subscribers are found downloading copyright material.The next section allows ex-parte injuctions, which are not uncommon in Australia.

Physical goods

These measures seem substantially similar to the situation in Australia today.

Criminal enforcement

Includes significant infringement even without commercial gain - this catches those who do it for thrills or some misguided opinion about the validity of intellectual property rights.

Penalties can include imprisonment, which seems appropriate, given that theft is theft, regardless of the object stolen.

Protection of ISPs

ARTICLE 2.18 [ENFORCEMENT PROCEDURES IN THE DIGITAL ENVIRONMENT]45

There are alternative approaches here, which pay lip service to protection of ISPs when a user infringes.

each Party [shall][ may]:(a) provide limitations52 on the scope of civil remedies available against an online service provider for infringing activities that occur by(i) automatic technical processes, and(ii) the actions of the provider’s users that are not directed or initiated by that provider and when the provider does not select the material, and(iii) the provider referring or linking users to an online location,when, in cases of subparagraphs (ii) and (iii)53, the provider does not have actual knowledge of the infringement and is not aware of facts or circumstances from which infringing activity is apparent;

This protection goes away unless the online service providers act [takes appropriate measures] expeditiously, in accordance with applicable law [s], [such as those] to remove or disable access to infringing material or infringing activity upon obtaining actual knowledge of the infringement

So what is "actual knowledge"? Is that because a rights-holder has made an allegation, or a court has declared that infringing conduct has occurred? The latter is indisputably "knowledge" - the former is not.

Another option is that an online service provicer must adopt and reasonably implement a policy to address unauthorised storage or transmission of materials. This will be a minefield for what is reasonable. The Rapidshare case dealt with this, noting that Rapidshare could not determine the contents of encrypted files - so would a service provider have to ban encrypted files?

Another alternative is a doozy...

[ 3 ter. Each Party shall enable right holders, who have given effective notification to an online service provider of materials that they claim with valid reasons to be infringing their copyright or related rights, to expeditiously obtain from that provider information on the identity of the relevant subscriber.

The false positives in USA cases seem to be common - this just drags a lot of people into something where they don't belong.I've got 4 teenagers in my household - we have explicit rules and I run some protective measures, but there's no way I can control what a couple of 18 year old boys can get up to. Why should I suffer?

Getting around stupid copy protection schemes

We have returned two games this year already, where they simply would not run on all of our computers due to copy protection. The govenment must restrict:

(a) the unauthorized circumvention of an effective technological measure64 [that controls access to a protected work, performance, or phonogram]; and(b) the manufacture, importation, or circulation of a [technology], service, device, product, [component, or part thereof, that is: [marketed] or primarily designed or produced for the purpose of circumventing an effective technological measure; or that has only a limited commercially significant purpose or use other than circumventing an effective technological measure.]]

12 May 2010

Last month I mentioned that Colombia (.co) has now released second level domain names, which means that I could register calvin.co. If I was handing out free advice, I'd probably say that if you have a .com domain then you should register the corresponding .co domain. Why? Typing .co is a very common typo, and typo squatting is a very popular activity. Google recently said it gets 15,000 redirects a day from google.co.

Trademarks

Being an intellectual property lawyer at the cutting edge is a painful activity. It’s probably quite expensive for some clients too. In the last year we have seen a number of foreign judgements dealing with hard questions, and the most recent is a German appeal in the Oberlandesgericht Dusseldorf in RapidShare AG v Capelight Pictures. RapidShare (http://rapidshare.com) is a file sharing service, where a user can upload files onto RapidShare’s servers. Friends or public users can then download the files from RapidShare’s servers. This has many legal and illegal uses, and Capelight was upset at its copyright material being available on its servers.

RapidShare does not vet the content placed on the servers, and it is up to the uploader to decide who can access the files. The appeal court held that RapidShare offered a legitimate service, could not reliably automatically vet the content uploaded, and could not easily block regular infringers. The court took care in its decision, noting that even if content scanning was available, the users could simply encrypt the files and make the password readily available. In short, the decision was about whether we could have file servers on the Internet or not. Fortunately the court said yes, unlike the Italian court which effectively held that Google needs to vet every single video uploaded to YouTube.

Another tricky question is the use of thumbnails by Google. If it finds a photograph on the Internet it creates smaller thumbnails to display in search results. The black letter lawyer in me says that this is simply an adaptation of a photographic work and is a breach of copyright. However, the businessman in me says this is terrific, and as long as I control the high-resolution version I am happy for anyone to thumbnail it. The German & USA Supreme Courts agree, particularly in a recent German appeal by Google against an artist. The artist won at first instance, but the Supreme Court held on 29 April 2010 that Google had not infringed copyright, although the reasons have not yet been published. It’s hard to see how the artist could not benefit, although it’s reasonable to argue that the artist should get a cut of any money Google makes (if it’s quantifiable).

Another tricky question is one of advertising. Let’s say that you search for Mercedes-Benz on Google, and on the results page you get the results you expect, but in the right-hand column you see advertisements for BMW. The only way Google knows to put those adverts there is to have a connection between Mercedes-Benz, cars, and BMW. In this hypothetical example, BMW would have told Google that their adverts should be displayed whenever Mercedes-Benz is being searched. Is that a breach of trademark law? Rosetta Stone thought so, because whenever users searched for Rosetta Stone (a language education product) they saw paid results for competitors. Rosetta took action in a US District Court, but failed on the point that Google was infringing their trademarks. A similar case was also run in the European Court of Justice by Louis Vuitton, who also failed. This case was probably more arguable that Rosetta, since the advertisers were actually selling counterfeit Louis Vuitton goods,

03 May 2010

If you have an iPhone 3 GS with OS 3.1.3 and Modem Firmware 05.12.01 then you can jailbreak it again using spirit. Very quick and very easy to do. Just make sure that if you are using Windows 7 that you change the application’s compatibility settings to Windows 98/ME.

26 April 2010

I’ve been using Office 2010 for a few days, and I’ve really only found a few interesting points so far:

1.Google Calendar Sync doesn’t work with Outlook 2010 (yet);

2.Outlook 2010 has adopted the ‘conversation roll-up’ style of Gmail, where it groups all parts of conversation together (by far my preferred view);

3.PowerPoint has a handy feature for creating a photograph slide show very easily;

4.Some of the new PowerPoint styles are quite nice.

That’s it for now – more to follow as I discover things.

UPDATE: A handy tip to solve the Google Calendar Sync problem: run a virtual machine (eg: Windows XP Mode if your version of Windows 7 supports it) and install Outlook 2007 and GCS in the VM. Make sure both versions of Outlook are pointed at your Exchange account. Calendar sync returned!

Australia, per capita, seems to be very high, but as Google notes, a single request might contain multiple matters, so other countries may seem much lower.

Of course, even this data may not be complete, since under some Australian legislation it can be an offence to disclose even the fact that a person has been given a notice to produce documents. An example of this is the Commonwealth of Australia Crimes Act 1914. It is an offence under section 3ZQT to disclose the fact that a notice has been issued under section 3ZQN or 3ZQO. These sections were introduced in the Anti-Terrorism Act (No. 2) 2005 - Schedule 6.

18 April 2010

Passwords are a hassle. I use a password manager that has over 300 combinations of usernames, passwords and other details. There's no chance I could remember all that, so I have two alternatives - use a password manager like LastPass or RoboForm, or just use two or three combinations for all of them.

What's wrong with using just a couple of different usernames and passwords? Well, this week I received an email from Atlassian, a software developer, with whom I have an account. Atlassian had a security breach which exposed the passwords for a proportion of their customers. This raised two issues: (1) the passwords shouldn't have been stored unencrypted anyway, and (2) if I was the hacker I would try the same username and password combination from Atlassian at HotMail, Gmail, FaceBook, MySpace and every other popular web site. I bet the hacker will successfully log in in many cases.

The only real answer to this problem is to use a password manager. I can recommend both that I've mentioned, and they both have iPhone clients as well.

Copyright

One of the interesting sequels to the film studio's recent unsuccessful action against iiNet is that some ISPs have changed the way they deal with infringement notices from reputable copyright management agencies. In the past Exetel has passed on any notices that they've received and blocked the user's acess until they acknowledge "they have received the infringement notice and either complied with it or denied the allegation." Exetel has notified its customers that it will continue to forward any notices, but will no longer take any other action.

Secure connections

You use an encrypted connection known as SSL whenever you connect to your bank or other secure site - you can recognise it because the address starts with https. SSL relies on the bank having a valid certificate certifying that the bank web site really does belong to that bank, and which is recognised by your browser. These certificates are issued by certain organisations, and web browser manufacturers choose to 'trust' these issuers. These 'root' issuers can also choose to trust other issuers, so that these intermediate issuers are effectively trusted completely as well. Firefox trusts well-known issuers such as VeriSign and Wells Fargo, but Windows and thus Internet Explorer also trusts the Hongkong Post Office, AAA Certificate Services, and AC RAIZ DNIE. Who are these organisations and why should I trust them?

A recent paper by C Soghoian and S Stamm (http://files.cloudprivacy.net/ssl-mitm.pdf) paints a scenario in which "government agences may compel a certificate authority to issue false SSL certificates... that can be used to covertly intercept... secure web-based communications." They go on to say that currently available products could be used in such as scenario. The authors have now released Certlock, an add-on to Firefox, which watches for changes in root certificates. Is this a real problem for us now? Probably not, but it does show that SSL is not the panacea we'd like to think it is.

Computer use policies

The New Jersey Supreme Court recently dealt with Stengart v. Loving Care Agency, Inc., No. A-16-09, holding that an employee who used her work computer to access her (web-based) Yahoo! email to contact her lawyers had 'reasonable expectation of privacy'. This was despite having a policy allowing workplace monitoring. This case has a few holes in it, since it involves a 'subjective' expectation of privacy. In this context this meant that the employee thought webmail did not leave content on the computer (it actually does), and she was communicating with her lawyers in relation to a workplace issue. There was apparently some ambiguity in the surveillance policy which led the court to say that she did not waive privilege, and that she was entitled to privacy because she took steps to use an apparently 'private' email system.

I don't think this is a great decision (unless the policy really was hopeless), but it's instructive for the next draft of your or your clients' reasonable computer use policy.

This is by far the simplest explanation I have seen on the Internet. Plenty of sites try to describe how to do it, but many such as redmondpie.com are a bit circular and are not very clear. However, thanks to redmondpie.com for bringing ToolJail to my attention!

18 March 2010

Would you go to camera.canon? Apparently the first company to take steps to acquire its own top level domain (TLD) is Canon. This means it will be able to have an internet address such as printers.canon. Why would Canon want to spend a lot of money on acquiring the domain and running a TLD (which isn't cheap)? I suppose this isn't a huge business expense, compared to, say, a national marketing campaign. It probably isn't for brand protection, since the rules and costs around TLDs will probably rule out domain name squatters.

But speaking of brand protection, Colombia's (.co) registrar will soon loosen its rules limiting names to the third level name space (eg lawsociety.net.co). This means that we could see lawsociety.co one day. Given that typing .co instead of .com is a relatively common mistake, brand protection principles suggest that acquiring a .co domain is going to be a nice money earner for Colombia. The process started on 1 March 2010.

Another change is happening in the .uk name space, as the registrar (Nominet) is considering allowing one and two character third level domains (eg: uk.co.uk). This will benefit companies well known by two character names such as HP (Hewlett Packard).

Speed

The National Broadband Network (http://www.nbnco.com.au) hasn't been particularly well communicated to the average voter. It will be a wholesale provider of high speed internet connectivity, from whom your average ISP such as iiNet or Internode will purchase services. Most ISPs purchase some or all of their connectivity from wholesalers (eg Reach, Telstra, Vocus) then provide it to consumers. If you happen to live somewhere where the NBN has laid its network, and your ISP buys connectivity from the NBN, then you'll be on the NBN. However, if you live somewhere today where you get ADSL2 or cable then you're in good shape anyway and the NBN may never feature in your life.

The NBN fits in neatly with some proposed legislation that is supposed to be introduced in the Autumn 2010 sittings - fibre to the premises. This legislation requires property developers to either install optical fibre or nothing into new developments. Today the best speed we can get is around 20 Mb/s either over cable or ADSL2+ (which is copper wire). Optical fibre, if run to your house, can be much faster. So if you live in a new estate with fibre, and have an ISP who has linked to the NBN or other wholesalers then you're likely to see 100 Mb/s into your house. While dial up (0.056 Mb/s) and ADSL 1 (1.5 Mb/s) is unusable today, anything over 10 MB is fine. I have a solid 11 Mb/s connection and I cannot saturate that connection without some technical trickery because sites such as YouTube or Microsoft simply do not deliver data at that rate.

The NBN aims to deliver 100 Mb/s to 90% of Australians and 12 Mb/s to the rest, so there is an element of 'future-proofing'. 100 Mb/s will be merely nice to have now, and will be truly useful someday in the future. However, speed isn't everything. A fast network is like having a multi-lane freeway - you can move a lot of cars, but it doesn't change the fact it takes 10 hours to drive from Sydney to Melbourne. Without special hardware the network experience for Perth users when using a Sydney server is not a good one, no matter how fast the network is. This delay (latency) may still pose problems for remote users, no matter their speed.

in Class 9. This class covers general computer accessories, mp3 players and accessories and other goods.

dopi is, of course, ipod spelled backwards. That of itself tells you that this company and its products are not related to Apple Inc. Would you buy a router from ocsic? Would you buy a car from drof? For goodness sake, Apple, wake up. Having said that, the Applicant had a pretty dodgy explanation for the name: "Digital Options and Personalised Items." Good luck with that.

For some reason, Apple listed twelve grounds in the Notice of opposition, but only relied on sections 44 and 60 at the hearing. This means that the trade mark applicant had to spend time dealing with the other, redundant, matters, yet they were not pressed.

Apple's first argument was that dopi was deceptively similar to iPod. The Delegate politely dealt with this argument. I will deal with it thus: ha ha ha ha ha ha.

By way of intermission, I note that Apple has also registered the very attractive trade mark "IPODCAST".

The Delegate said in para 27 that Apple's counsel's analysis in relation to piggybacking on the letter "i" was "flawed." He noted that Apple had not led evidence about associated marks such as "iMac." He noted that there are "scores of parties" with marks such as IBOX, iPort, iJOG, IWAKE, IVISION and iDrive.

What led to my hilarity about this application by Apple Inc was the fact, noted by the Delegate in para 28, that Apple itself markets third party products on its own web sites at www.apple.com and www.apple.com.au (amongst many others) with names such as iSkin, iClear and iSee!! He went on to note that he has personally owned Apple products for many years and purchased associated magazines which advertise products such as iSkin, iTalk and iMic.

So, another note about the evidence... Counsel for the Applicant (the dopi people) noted that Apple had not produced any evidence of actual confusion or deception, despite having had months to do so.

So Apple was left with the last of its "twelve" arguments - s 60 - the Trade Mark is similar to a trade mark that has acquired a reputation in Australia.

09 March 2010

I'm a bit of a Google fanboy - I find many of its services very useful. The relationship is a commercial one, because in return for Google's services I give Google a set of eyeballs to look at advertisements. These services are not free services - either for Google or me.

One particular service makes my iPhone a useful gadget - Google Mobile Sync. This allows an iPhone to synchronise almost instantly with my contacts, email and calendar (all of which are Google services). This service is expressed to be in beta, although so was GMail for a long time and people relied on it.

Unfortunately, Google Mobile Sync has been flaky and unreliable for some months, and Google has, to the best of my knowledge, mentioned it ONCE on the Internet. This mention was on a support forum, and provided little information; in fact it was misleading as people had had the issue for many months before.

There was a semi-scheduled outage on 5 March 2010, but it's not clear if this has solved the problem. Oddly enough, this issue nor the outage has been mentioned on the Official Google Australia Blog, the Apps Status Blog or any other blog that I'm aware of. I really can't understand why. An educated guess is that this has affected more than a million users, many of whom are expressing confusion as to what they've done wrong. Many, like me, have fiddled endlessly with our phones, trying to 'fix' them.

The lesson in all of this is that bad news should travel fast. If you're responsible for IT services then please don't hide your problems, hoping that no-one will notice. Tell your users that there's an issue, and if you can, tell them when it might be fixed. If you don't know, then tell them that too. Be up front so that users can make plans to work around the issue. If a user knows the expected outage time then he can either delay an activity or find another way to do it. He'll get really frustrated if he finds out too late, so that he is unable to achieve his goals some other way.

25 February 2010

In March 2009 I wrote about a court case in Italy against four Google employees. I explained why I believed that the case was doomed, due to EU Directive 2000/31/EC, Articles 42-46.

In February 2010 the Court delivered its decision to convict three of the defendants, although it has not delivered the reasons for its decision. The conviction was for failure to comply with the Italian privacy code. As far as I can tell, Google complied with all its obligations under the Directive, so either Italian law is not in compliance with the Directive, or we're missing some important background information here.

Google has indicated it will assist the employees to appeal the decision as a matter of law, but it is also troubled about the policy implications that may flow. As I said in 2009 "If this case was successful then it would probably mean the end of user content on the Internet in Italy." Or, as Google said today:

If that principle is swept aside and sites like Blogger, YouTube and indeed every social network and any community bulletin board, are held responsible for vetting every single piece of content that is uploaded to them — every piece of text, every photo, every file, every video — then the Web as we know it will cease to exist, and many of the economic, social, political and technological benefits it brings could disappear.

17 February 2010

I bought a Dell Inspiron Mini 1012 the other day - it's a nice netbook replacement for my much travelled eeePC 701. The Windows 7 Starter Edition upgraded nicely to Windows 7 Ultimate in a few minutes.

I have a data plan on my iPhone, and I thought I'd try the standard Bluetooth tether. Although the iPhone & Dell paired successfully, it wasn't quite right. The Dell wanted to install a driver for the iPhone, and it left the phone icon with a yellow exclamation point - it could not find a driver for the Bluetooth Peripheral Device.

The fix:

1. in the "View Devices and Printers", you should see the iPhone (after pairing). Right click on the phone and select "properties".

Click on Services tab.

Uncheck “Wireless iAP” (wireless internet access point).

That's it. If you want to use the iPhone as a modem, make sure tethering is turned on in the iPhone, and Bluetooth is turned on on both iPhone and computer, then right-click on the phone icon in Devices and Printers and select “connect using -> access point”.

You should now have an internet connection! The iPhone will show a blue bar at the top of the screen telling you the amount of data transfer. You can turn off the iPhone screen if you wish and you can keep using the connection.

15 February 2010

Sometimes politicians come up with funny ideas. You see, South Australia is having a state election in March, and Michael Atkinson, the SA Attorney General enacted a rather unusual law... s116(1) of the Electoral Act 1985 (SA). It provides (my paraphrase):

"A person must not, during an election period, publish material containing a commentary on any candidate or political party, or the issues being submitted to electors in a journal published in electronic form on the Internet or by radio or television or broadcast on the Internet, unless the material contains a statement of the name and address (not being a post office box) of a person who takes responsibility for the publication of the material. This does not apply if the name and address is retained by the publisher for a period of 6 months after the election period."

"Journal" here means a "newspaper, magazine, or other periodical". This was aimed squarely at professional media, but it also purports to catch blogs and other online media. The fine is $1,250 for a natural person and $5,000 for a body corporate.

The SA government has announced that it will not enforce the law and it will be repealed after the election. Having a brand new law on the books that is worthless says a few things about the process that got it there, but the real issue is a reduction in the freedom to do certain things. It is true that people dishonestly put incorrect bylines on blogs and even in letters to the editor, but that's life.

Party electoral information has long been required to state specified matters. However, this was a step beyond that, affecting the general public. For that reason it's worth dissecting this section...

I assume the A-G was concerned about anonymous remarks (he's currently involved in defamation litigation). The problem is that this section causes a lot of new problems. Who "takes responsibility for the publication of the material"? Is it the newspaper, the editor, or the writer of the letter to the editor? If the material is in a comment to a blog, is it the blogger or the commenter? Careful reading leads to the curious inference that the person who takes responsibility for the publication of the material is not the publisher.

The definition of "journal" is another minefield. I think I understand what a "newspaper" is on the Internet as long as I read it narrowly to mean a Fairfax, Consolidated Press or similar mainstream publication, but why stop there? What about Crikey (http://www.crikey.com.au/)? I consider that most definitely a "news site", but it's not a newspaper. I would respectfully suggest its readership is far greater than the St George Leader (www.theleader.com.au) which is a Fairfax newspaper.

"Magazine" is a lot harder, as to me that means a glossy thing, but it also means to me something online like Slate (http://www.slate.com). "Other periodical" suggests that one-off publications are excluded from this law. But what is 'one-off' on the internet? Is it a new web page on a site, or a new web site? Perhaps it's just a new entry on a blog? What is a "periodical" in a world when a publication (a web site) is updated every few minutes or hours?

Finally, we see that the law applies to "commentary in written form... published by radio or television or broadcast on the Internet." There is a technical legal issue of "broadcast on the Internet" since the Broadcasting Services Act 1992 (Cwlth) provides that "programs available on demand on a point-to-point basis" are not a "broadcasting service." Then there's the obvious issue - how do you broadcast commentary in written form on the radio?

04 February 2010

The first major case by film and media studios against an Internet Service Provider (ISP) has been won by the ISP. In Roadshow Films Pty Limited & Ors v iiNet Limited (No. 3) FCA 24 (4 February 2010), Justice Cowdroy of the Federal Court of Australia dealt with

... the question whether an internet service provider or ISP authorises the infringement of copyright of its users or subscribers when they download cinematograph films in a manner which infringes copyright. In Australian copyright law, a person who authorises the infringement of copyright is treated as if they themselves infringed copyright directly.

This turns on the question of authorisation in Australian copyright law. This is a well established area of law, and for example, catches web site operators who post links to copyright music hosted on other web sites. It doesn’t matter that you don’t host the music files – it matters that you impliedly authorise other people to download them by linking to them.

This case is the start of an important series of proceedings (given that there no doubt will be appeals).

That this trial should have attracted such attention is unsurprising, given the subject matter. As far as I am aware, this trial, involving suit against an ISP claiming copyright infringement on its part due to alleged authorisation of the copyright infringement of its users or subscribers, is the first trial of its kind in the world to proceed to hearing and judgment. (para 5, judgement summary)

Of course, this case was run by the film studios for many reasons other than suing iiNet. From the studios’ point of view:

If they won, then they would have a judgement to put the frighteners in every other ISP in Australia. They would be able to force ISPs to disconnect users who are said by the studios to be downloading copyright material;

If they lost, then they will go to the Australian federal government and lobby for changes in copyright and associated laws to give them greater rights to interfere with Australian internet users without the oversight of the courts.

In other words, this case was always going to be a win for the studios if their lobbying of the government is successful. One can imagine that AFACT will have a prodigious government relations team who is going to relentlessly harass the federal government. Unfortunately, the ministers and mandarins in the Federal government seem to be firmly in the camp of business, rather than taking a balanced view for all Australians. We may well see more proposals and perhaps even law with ill-considered, unnecessarily restrictive and hostile provisions in it.

Analysis of the judgement

The critical issue in this proceeding was whether iiNet, by failing to take any steps to stop infringing conduct, authorised the copyright infringement of certain iiNet users.

The Court found that a number of iiNet users had infringed copyright. However, that number was significantly fewer than the number alleged by the studios. This was based on the Court's understanding of BitTorrent, and that a person would make available a film only once. I'm not sure about that, but we'll see.

The critical part of the judgement summary is (with my emphasis):

The next question was whether iiNet authorised those infringements. While I find that iiNet had knowledge of infringements occurring, and did not act to stop them, such findings do not necessitate a finding of authorisation. I find that iiNet did not authorise the infringements of copyright of the iiNet users. I have reached that conclusion for three primary reasons which I now refer to.

Firstly, in the law of authorisation, there is a distinction to be drawn between the provision of the ‘means’ of infringement compared to the provision of a precondition to infringement occurring. The decisions in Moorhouse, Jain, Metro, Cooper and Kazaa are each examples of cases in which the authorisers provided the ‘means’ of infringement. But, unlike those decisions, I find that the mere provision of access to the internet is not the ‘means’ of infringement. There does not appear to be any way to infringe the applicants’ copyright from the mere use of the internet. Rather, the ‘means’ by which the applicants’ copyright is infringed is an iiNet user’s use of the constituent parts of the BitTorrent system. iiNet has no control over the BitTorrent system and is not responsible for the operation of the BitTorrent system.

Secondly, I find that a scheme for notification, suspension and termination of customer accounts is not, in this instance, a relevant power to prevent copyright infringement pursuant to s 101(1A)(a) of the Copyright Act, nor in the circumstances of this case is it a reasonable step pursuant to s 101(1A)(c) of the Copyright Act. The reason for this finding is complicated and lengthy, and is not suitable for reduction to a short summary for present purposes so I shall refrain from attempting to do so.

Thirdly, I find that iiNet simply cannot be seen as sanctioning, approving or countenancing copyright infringement. The requisite element of favouring infringement on the evidence simply does not exist. The evidence establishes that iiNet has done no more than to provide an internet service to its users. This can be clearly contrasted with the respondents in the Cooper and Kazaa proceedings, in which the respondents intended copyright infringements to occur, and in circumstances where the website and software respectively were deliberately structured to achieve this result.

Consequently, I find that the applicants’ Amended Application before me must fail. However, for the sake of completeness, I have considered all the issues argued before me.

So the Court found that some people did engage in infringement of the studios' copyright. It found that the number was less than that alleged by the studios. It found that iiNet did not authorise infringement of the studios' copyright.

The difference between this case and Kazaa is that Kazaa provided software - the 'means' of infringement; using Kazaa was inherently infringing. iiNet merely provided internet access; it didn't control software or the BitTorrent system.

The Court also found that disconnecting customers is not an appropriate or reasonable response.

Finally, the Court found that iiNet simply did not approve copyright infringement - there was no evidence that iiNet did anything more than provide internet access. It did not structure its systems or network to facilitate or encourage copyright infringement.

An interesting conclusiong by His Honour was:

Finally, I find that iiNet did have a repeat infringer policy which was reasonably implemented and that iiNet would therefore have been entitled to take advantage of the safe harbour provisions in Division 2AA of Part V of the Copyright Act if it needed to do so.

This is what we lawyers call obiter, since a decision didn't need to be made in this particular case on this point, but it remains instructive.

So, a good result for iiNet, and we'll watch the rest in the halls of justice and the halls of politicians' offices.

18 January 2010

Terms

I recently advised on the formation of contracts via web sites, noting that it is clear in NSW that it can be done. In Smythe v Thomas [2007] NSWSC 844 the court made it clear that a contract for the sale of goods was entered into by the parties via eBay. However, recently a Missouri woman claimed in Major v McCallister and ServiceMagic (Missouri Court of Appeals SD29871) that she could not be bound by a website's terms and conditions because the site had not forced her to look at a page containing the conditions. Instead, there was a link next to the "submit" button which took the user, if they clicked on it, to the terms of use. The court said it should "still apply traditional principles of contract law and focus on whether the plaintiff had reasonable notice of and manifested assent to the online agreement." It also noted that the courts routinely enforce clickwraps.

However this case was about a 'browsewrap' where one need not click to accept the website terms - use of the site itself constitutes acceptance of its terms of service. Earlier cases had not enforced such agreements where it was not immediately noticeable, but in this case there was "immediately visible notice of the existence of license terms." The court held that the terms applied. The moral? You might draft great terms, but you also need to test your clients' sites to make sure they are visible (eg: without scrolling, or hidden behind other buttons or links).

Friends

Sites such as MySpace, FaceBook and LinkedIn allow users to post information about themselves with a view to networking with people they know or meeting new contacts. Once you 'connect' or 'friend' a person you can easily share photos or text either individually or with all your friends. So should a person exercising judicial office have "friends" in the profession? The Florida Judicial Ethics Advisory Committee doesn't think so. The question 'Whether a judge may add lawyers who may appear before the judge as "friends" on a social networking site, and permit such lawyers to add the judge as their "friend."' was answered "no". On the other hand, the South Carolina Judicial Department reached the conclusion that "A judge may be a member of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge’s position as magistrate."

Costs

The Seventh Circuit of the US District Court has decided to tackle the "reform of the civil justice pretrial discovery process... to try to take action to reduce the rising burden and cost of discovery... brought on primarily by the use of electronically stored information". It produced a set of principles to assist parties to focus on "indentifying specific sources of evidence that are likely to be sought in discovery but that may be problematic or unduly burdensome or costly to preserve or produce." The principles include: cooperation by the parties; proportionality of discovery; targeted, clear and specific requests for preservation; early conferences by the parties to identify scope, potential for reducing costs and burden, and formats for production; use of 'e-discovery liaisons' who may be lawyers or laymen and will attend conferences and hearing; and, agreed keywords and filters of electronic data.

These principles, if enforced by the court, are likely to go some way to reduction of costs in many matters. In particular, the concepts of proportionality and targeted requests are likely to bear fruit. However, many lawyers may not voluntarily respond, and it will be up to the courts to make it happen.

01 January 2010

This article in the Sydney Morning Herald points out the absolute hopelessness of current airport security gates. I find them annoying and obviously worthless. I wonder if the people who work at airports carrying out security checks feel just at worthless?

Airport security is a charade - miming a thing without actually doing the thing. It assumes that bad people only use obvious weapons, such as knives, nail clippers, small bottles of perfume, machine guns and brass knuckles. It also assumes that they obey lots of rules while preparing for mass murder, like sitting down when told, or not using the bathroom in the last hour of flight.

Obviously [sarcasm warning] a potential killer won't do bad things like ripping hard plastic shrouds off the windows and using the splintered brittle plastic as a stabbing implement. They won't use any of the dozens or possibly hundreds of other things found on an aircraft that can equally be used for mayhem.

The article mentioned is correct in that a better approach is to consider the passenger - not his or her goods. Taking nail clippers off an Australian couple with two kids flying from Sydney to Melbourne in the school holidays is only going to make them angry and reinforce the farce that is airport security at Sydney airport.

Our security agencies spend a lot of taxpayer money identifying threats - both individual and general types. It's about time that they used this profiling information to carefully identify those who may threaten security, whether at the airport or anywhere else. In fact, it seems that it's only at the airport that we don't use the sort of intelligence that ASIO and other bodies gather.

About Me

Well known for my column Cyberspace in the Journal of the Law Society of New South Wales, I'm in private practice in a specialist technology & commercial law firm - Pym's Technology Lawyers. I've been in-house legal counsel at major enterprises:

Ash Street Partners

Pym's Technology Lawyers

Sydney Water Corporation (Australia's largest water utility), and

Technology & Commercial law team at the Australian Broadcasting Corporation (Australia's pre-eminent media organisation),